Filibuster weakened, Senate OK'ing judges faster

Seven months after curbing filibusters, Democrats are aggressively pushing President Barack Obama's judicial nominees through the Senate, speeding the pace of confirmations and shrinking vacancies on the federal bench to their lowest level since days after Obama took office.

WASHINGTON — Seven months after curbing filibusters, Democrats are aggressively pushing President Barack Obama's judicial nominees through the Senate, speeding the pace of confirmations and shrinking vacancies on the federal bench to their lowest level since days after Obama took office.

The Democratic drive comes with the party facing difficult November elections that could turn over Senate control to Republicans and make it harder for Obama to win approval for judges during his final two years in office. That also would threaten his chances for matching the number of circuit court of appeals and district court judges his immediate predecessors put on the federal bench in their eight-year terms: 324 by President George W. Bush and 372 by President Bill Clinton.

The Senate has confirmed 54 of Obama's judicial choices since Nov. 21, when majority Democrats made it harder for Republicans to use filibusters to derail nominations. Twenty-eight judges have been confirmed in just the past seven weeks, with at least three more coming up for votes this week.

By contrast, the Senate filled 36 judgeships in the first 11 months of 2013 before the filibuster was weakened, and 49 in all of 2012.

Thanks to the push, Obama has appointed 261 appeals and district court judges — all of them lifetime positions — filling nearly a third of the entire federal judiciary since entering the White House. At the same point in his sixth year, the second President Bush had filled 242 such vacancies, according to Russell Wheeler, who studies the federal judiciary at the Brookings Institution.

The influx of Obama judges is likely to give the federal courts a more liberal tint than they've had in recent decades. Before he entered the White House, Republican presidents had been appointing judges for 20 of the previous 28 years.

"A president in office eight years leaves a stamp on the judiciary," said Nancy Zirkin, policy director for the Leadership Conference, a liberal coalition. "Obama will be able to leave a stamp."

Significantly, while 10 of the 13 federal circuit courts of appeals had majorities of GOP-named judges when Obama took office, nine are now dominated by Democratic appointees. Those courts are just one step below the Supreme Court and have enormous regional clout, and include the U.S. Court of Appeals for the District of Columbia Circuit, which holds sway over regulatory actions by the White House and federal agencies.

Overall, Democrats have whittled vacancies on federal appeals and district courts to 62. That's down from 96 in February and the lowest level since there were 59 vacancies in February 2009, right after Obama took office. Today's vacancies, however, are still more than the 52 unfilled judgeships in June of Bush's sixth year in office.

The stepped-up pace comes despite Republican efforts to slow Senate work by forcing procedural votes and other delays on nominations and bills.

Republicans say they're protesting last November's power play by Democrats, who unilaterally reduced the number of votes needed to end filibusters, or procedural roadblocks, from 60 to a simple majority, usually 51. As a result, the 53 Democrats plus two independents who generally side with them no longer need a handful of GOP votes to approve most nominations.

That change was "a despicable and black act that will live in history," said Sen. John McCain, R-Ariz.

Democrats say Republicans were hindering Obama nominations long before the rules change, including imposing long delays on non-controversial Obama nominees simply to thwart his agenda.

They weakened the filibuster, Democrats say, only after GOP senators blocked qualified nominees to agencies they dislike, such as the Consumer Financial Protection Bureau, and because Republicans wanted to keep Obama from tipping the D.C. Circuit Court of Appeals to a majority of Democratic-named judges.

"One of the main reasons to change the rule was to fill the bench," said Sen. Chuck Schumer of New York, the No. 3 Senate Democratic leader.

Republicans say they were handling Obama's nominees just like Senate Democrats treated Bush's choices, blocking several of them, including high-profile appeals court nominees, because of their past decisions or advocacy roles in politically charged cases.

"The delays on judges were in line with the history of delays on judges," said Sen. Jeff Sessions, R-Ala., a senior member of the Senate Judiciary Committee. "Obama was not being treated unfairly."

The quickened work on judicial nominations, led by Senate Majority Leader Harry Reid, D-Nev., and Judiciary Committee Chairman Patrick Leahy, D-Vt., has not been without snags.

Obama's selection of Michael Boggs to become a district court judge in Georgia is in limbo after Reid and other Democrats said they opposed the nomination, citing Boggs' past stances on issues related to abortion and civil rights.

It has taken an average of 232 days for Obama's picks for district and appeals court judges to move from nomination to confirmation, according to a calculation using numbers supplied by Brookings' Wheeler. That compares with an average of 215 days for Bush's nominees through this point in his presidency and 131 days for Clinton's selections through early June.

Wheeler's data also shows that 87 percent of Obama's nominees for those posts have been approved. That's slightly worse than Bush's 89 percent for the same period and better than Clinton's 81 percent.